Between Protection and Punishment: The Irregular Arrival Regime in Canadian Refugee Law 

Abstract

With the steady movement towards the securitization of borders in the aftermath of the 11 September 2001 attacks, and the concurrent expansion of Canada's anti-refugee agenda, the Canadian border has been re-charter, re-enacted, and re-constituted as a "smart" border. For many refugee claimants, the Canadian border is increasingly becoming a site of restriction, exclusion, and punishment. This chapter questions the Canadian border's reconstitution as a site of punishment for refugee claimants by examining the Designed Foreign National (DFN) regime, a highly criticized mechanism that permits the Canadian government to discipline foreign nationals for suspected violations of border laws by labelling them "irregular". I analyze the DFN regime in relation to the Canada-US Safe Third Country Agreement (STCA), to explore the links between these two measures. I argue that among its many operations, the STCA operates to reconstitute refugee claimants through discourses of criminality and illegality, and thus plays a key role in producing the very "irregularity" that the DFN regime is deigned to punish. Proceeding from this claim, I argue that the DFN regime is premised on a legal and conceptual flaw: it presumes "irregularity" to be an essential subject position that reflects a transgression of Canadian border laws, when in fact, it is a constitutive subject position produced by these laws. By punishing refugee claimants for being deemed "irregular", the DFN regime effectively empowers the Canadian government to punish refugee claimants for trying to avail themselves of the right to seek asylum in Canada.